Sapping the Superfund’s Strength

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April 15, 2010

If you head north on Route 66, past Kay’s Kut & Kurl, the Okie Burger drive-in and the house where Mickey Mantle grew up, you come to a silvery, man-made mountain range. These are metal mountains, massive piles of sand mixed with arsenic, lead, cadmium and manganese tailings–toxic leftovers from more than 300 mines that once made this northeast corner of Oklahoma a series of boomtowns.

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From the turn of the century through the 1960s, miners dug in this area for lead, zinc and other raw materials, mostly used to make munitions for the military. When Eagle-Picher and most of the other mining companies shut down their sites by the mid-1970s, they didn’t bother to clean up the toxic heaps, called chat. They abandoned the chat piles, some of which rose about 200 feet high and were as wide as two city blocks. The chat blew around Ottawa County, coating houses and yards with poisonous dust and saturating the air near schools and stores. Oblivious to any danger, parents helped themselves to the chat to fill sandboxes, and kids raced dirt bikes over the peaks.

The mining companies also neglected to seal most of the mine shafts. Over the next few years the shafts slowly filled with polluted, acidic water, which by 1979 burst into nearby Tar Creek, dyeing it Day-Glo orange and killing fish and other aquatic life. During frequent floods, the waters of Tar Creek would contaminate nearby neighborhoods, staining sidewalks and stones and leaving the soil unsafe for growing food–a particular problem for members of the Quapaw Indian Nation and other tribes accustomed to living off the land.

The sickly-looking river drew the attention of the EPA, which in 1983 designated Tar Creek an early and important target of Superfund, the landmark program enacted by Congress in 1980 to clean up the nation’s worst toxic waste sites. But the EPA’s roughly $120 million effort to remediate Tar Creek failed because of poor planning and complications from the underground network of tunnels and mines, and so people in the nearby towns of Picher, Cardin and Hockerville, as well as some farther away in Miami and Commerce and across the state line into Kansas, continued to be exposed.

In 1994 Rebecca Jim, a member of the Cherokee Nation who worked as a school counselor in Miami, read about the dangers of exposure to lead. She insisted that the government test some of the schoolchildren. The results were shocking: more than 43 percent of the kids had levels considered unsafe, capable of diminishing intelligence and causing other behavioral and physical problems. Jim was a driving force behind a massive education campaign that warned residents not to play in the chat, fish in the orange creek or eat food grown locally. Ten years later, the lead levels were much improved.

But that didn’t mean the people were safe. Harvard public health professor David Bellinger and his colleagues found that children who had the highest levels of a mixture of arsenic and manganese, as measured in their hair, did worse on tests measuring verbal skills and verbal memory than kids who were less contaminated. These results led the National Institute of Environmental Health and Sciences to sponsor a second study by Bellinger, measuring more contaminants in the blood of Tar Creek community children and testing, among other things, whether exposure to chat has impaired their ability to think.

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Bellinger, a lean, blue-eyed 53-year-old with graying hair and a close-cropped beard, is modest, despite his reputation as a brilliant researcher. He’s gentle with the children and their worried parents–who leave the clinic with a $50 Wal-Mart gift certificate and a lot of unanswered questions. He became close to the test subjects after spending weeks in the community and wishes it wasn’t going to take so long to get results. This study will continue for another five years, and others are under way. "There’s a lot of smoke suggesting that we need to be concerned," Bellinger says.

The results of his team’s work may be used to justify stricter protection standards for exposure to certain chemicals; could push the EPA to expedite efforts to clean up other Superfund sites; and will add to the growing body of science on what happens when people are exposed, not just to one pollutant but to mixtures–as typically occurs in real life. But these changes will come too late for the children and adults of Tar Creek. Unable to restore the land and water to a safe condition, the state in 2005 offered a buyout to families with children age 6 and younger. Then the EPA offered a second buyout, paying to relocate all those willing to leave–but leaving behind Quapaw tribe members, to whom abandoning the ancestral burial ground was unthinkable, and those who didn’t qualify for any more land. Across the border in Kansas, the EPA is working on a buyout for the townspeople of Treece.

Tar Creek is just one of more than 1,200 seriously contaminated hazardous waste sites the EPA is charged with cleaning up under Superfund. But at thirty years old, the program is staggering under the weight of its enormous mandate. Underfunded and at times badly managed, Superfund has been slow to start cleanups, sluggish to complete them and, in recent years, incapable of standing up to the Defense Department and others responsible for some of the worst pollution.

Today, Superfund’s National Priorities List, which designates the worst hazards, includes sites that have been stuck on that roster for decades. Along New York’s Hudson River, where General Electric dumped PCBs, serious setbacks in dredging the site to make it safe have been well documented. In Libby and Troy, Montana, so many people developed asbestos-related disease from a closed vermiculite mine that, earlier this year, the federal government declared a public health emergency. At Portland Harbor, in Oregon, Democratic Representative Earl Blumenauer says contamination from former shipbuilding is threatening the safety and health of those who live around the river. And across the country, communities are vying to get their waste dumps included on the priorities list.

By the EPA’s count, one in four Americans lives within a few miles of a hazardous waste site. According to the Agency for Toxic Substances and Disease Registry (ATSDR), which Congress created to monitor the health of communities near Superfund sites, the waste dumps include a host of dangerous substances, among them lead, arsenic, manganese, mercury, vinyl chloride, benzene and PCBs. These chemicals are capable, in sufficient doses, of causing cancer or gene mutations, or altering the developing thyroid, endocrine and central nervous systems. Along with these known hazards is a fast-growing category called emerging contaminants–compounds whose toxic properties are only now being investigated.

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It is true that the EPA has cleaned up more than 300 sites. Elizabeth Southerland, Superfund’s program director, says there are now only eighty-four priority list sites that pose an immediate and direct threat to human health. But Southerland’s figure doesn’t consider the number of Superfund sites that are leaking toxic chemicals into groundwater–which add more than 200. It also doesn’t take into account the sites that the EPA staff are not adding to the priority list because they don’t have the money to clean them up–a point noted in a recent report to Congress.

"I don’t know that there is a legitimate reason for why they are still so slow, because some of those sites were listed in 1983 or ’84," says Katherine Probst, a former EPA consultant and Superfund advisory board member. "That’s a long time ago."

When Congress adopted Superfund–officially, the Comprehensive Environmental Response, Compensation and Liability Act–it built in funding by placing taxes on crude oil and certain chemicals, along with a corporate environmental tax. This system was designed to arm the EPA with the resources necessary to investigate suspect sites and restore them in coordination with responsible parties or, failing that, to do the cleanup itself and later sue the responsible party to foot the bill–collecting up to triple damages. Historically, the majority of Superfund cleanups have been performed or paid for by the previous owners and operators of contaminated sites. Superfund taxes paid for the remaining 30 percent.

In 1995 these taxes expired. The trust, which in 1996 contained $3.8 billion, was empty by 2003. The value of the program’s annual budget has declined 38 percent since 1980. A 2005 internal memo from the director of Superfund’s Remediation and Technology Innovation Office acknowledged, "Over the past several years, demands on the Superfund budget have increased to the point where not all projects ready for construction in a given year can be funded." One group of EPA advisers, the National Risk-Based Priorities panel, meets twice a year to divvy up the pot. It’s not easy. Meetings pit advocates for cleaning up places where young children are exposed to a carcinogen against sites where adults are exposed to something worse.

"I think the root cause of the problem is that the Superfund fee expired a long time ago," says one former Hill staffer who asked to remain anonymous. "And now, because EPA does not have the resources to make a credible threat that it’s going to step in, clean up and charge treble costs, that makes it very difficult for the agency to do the kinds of investigations that force the cleanups." Litigation declined steeply under George W. Bush.

Although some of the blame can be placed on Bush–the only president who opposed the Superfund taxes–President Clinton was not much of an advocate for Superfund either. "In the president’s budget, they always requested to reinstate the Superfund taxes when they expired, but it was not an issue that they went to the mat on," says Probst. "There’s requesting–and there’s going to the mat."

One recent boost for Superfund was the 2009 Recovery and Reinvestment Act, which targeted $600 million at fifty-one Superfund sites. The stimulus bill also deferred a requirement that states chip in toward the cleanup cost. "It’s helping; it’s a very positive factor," says Gary King, acting bureau chief for the Bureau of Land in Illinois. "They were able to get that money allocated quickly for projects."

It is not yet clear what direction the EPA will take under the Obama administration. The pace of cleanups has slowed. EPA spokespeople justify this in the same way they did under Bush, by saying those sites left on the list are more complex and costly to clean up than earlier sites. But critics don’t buy it. Obama has also worried environmentalists with his appointment of Ignacia Moreno, former counsel to GE, as the top environmental lawyer to the Justice Department. One of GE’s tactics was to challenge the constitutionality of Superfund. This is not Moreno’s first pass through the revolving door. She worked in the Justice Department under President Clinton before going to GE, which has long fought the EPA over cleaning up the PCBs–as much as 1.3 million pounds–that the company spewed into the Hudson.

"The Obama administration has a brief window," says Probst. "This new administration has not been there very long, but what I said to EPA is, Time is running out…. One needs to say, Well, what is this administration going to do?"

Ed Hopkins, director of the Sierra Club’s Environmental Quality Program, says Superfund has suffered from a lack of attention from the White House and Congress. "With healthcare, financial regulation and climate change consuming all the political system’s energy, neither the administration nor Congress has done much to reauthorize Superfund’s original funding mechanism," he says.

Obama’s 2010 budget calls for the reinstatement of those taxes, and Representative Blumenauer has introduced a bill to do so. But if EPA administrator Lisa Jackson is going to strengthen the program, she’ll have to do more than boost the budget. In a series of recent reports, both the Government Accountability Office (GAO) and the EPA’s inspector general noted that the agency has wasted some of its scarce resources. An IG report noted that in 2008 about $65 million in Superfund special accounts and $88 million in reserves could be freed up if more effective management was in place. Some lawmakers have vowed not to give Superfund extra money until the EPA can better explain where its current budget is going. Also, in recent months an EPA advisory committee has raised questions about the program’s scientific standards and its failure to assess and monitor effectively the cumulative risks to the public posed by chemicals at Superfund sites.

Then there is the military. In March 2009 the GAO said nearly 1,000 former worksites of the military or its contractors require cleanup. In their typically understated language, the watchdogs wrote, "We continue to assert that EPA needs additional authority to ensure that cleanups are being done properly." (The Pentagon disagrees.) The reality is that the EPA could use its existing power to adopt more stringent standards for some of the chemicals that have leached from military sites, but it has caved in to Department of Defense opposition.

One important case in point is perchlorate, a chemical used by DoD, NASA and government contractors to make rocket fuel, flares and explosives, and that has been detected in thirty-five state water supplies. Perchlorate disrupts the thyroid hormone, which is important in regulating many body functions, among them neurological development. Kevin Mayer, an EPA site manager in San Francisco, says he’s been worried about perchlorate pollution for a long time. The EPA has been sparring with DoD about the chemical for many years, and renewed its investigation into the chemical’s safety in 2009.

"Throughout the cold war, a lot of chemicals were used and not handled the way we would handle them today," Mayer says. "Consequently, especially in our neck of the woods, if you’ve contaminated groundwater, you’ve contaminated major drinking water supplies." Mayer said DoD and NASA contractors found responsible for the contamination can charge the government for as much as 90 percent of cleanup costs. But to Mayer, it’s worth the money.

"I continue to talk with people whose water supply has these chemicals in them," he says. "I think that my experience talking to a group of people, with a pregnant woman crying in front of me, gives me a little bit different point of view than scientists working in and around Washington, DC, with lobbyists screaming about how much it’s going to cost them."

The former Hill staffer, who also worked on perchlorate, notes, "They would have adopted strict cleanup levels, but there was a lot of political pushback on multiple fronts, certainly from DoD." Will that change under Obama? "It remains to be seen. It would require a showdown. It hasn’t happened at this point." There are 200 Navy sites that contain contaminated underwater sediments, according to Dogus Meric, a graduate student at Northeastern University who does government-sponsored Superfund research.

Another problem Obama has not yet taken on is the disarray at ATSDR, which conducts health assessments of Superfund sites and the communities that surround them. The EPA uses such assessments when making its priorities list. In March 2009 a report on ATSDR by the majority staff of the House Committee on Science and Technology’s subcommittee on investigations and oversight noted that "independent scientists are often aghast at the lack of scientific rigor in its health consultations and assessments," and that its studies are so flawed they are "doomed from the start."

"Time and time again ATSDR appears to avoid clearly and directly confronting the most obvious toxic culprits that harm the health of local communities throughout the nation," the report said. "Instead, they deny, delay, minimize, trivialize or ignore legitimate concerns and health considerations of local communities and well respected scientists and medical professionals." In what may signal that Obama is starting to take these criticisms seriously, former director Dr. Howard Frumkin was recently demoted.

Another agency, the National Institute of Environmental Health Sciences, supports fourteen university programs that monitor the health of people who live at Superfund sites like Tar Creek. Dr. William Suk, who runs the program, says, "Superfund is essentially an end-of-the-pipeline mentality. We have sites that have been around for a long time that need to be cleaned up…. We’re stuck with the ones we have. We have to clean them up. We have to make sure the populations are protected, and we have to launch new programs that would allow for there to be a much more interactive, integrated approach to ensuring what comes out of the pipeline is air and water."